Aussie Gamer Loses PS3 Court Case Over 'Other OS'

dotarray writes "An Australian man who took Sony to court over the company's decision to remove Linux functionality from the PS3 console has now lost his claim, with the court clearing the manufacturer of any wrongdoing regarding the upgrade."

Comments

Is this any surprise?

[chaboud]

It's completely ridiculous, which shouldn't surprise anyone. We already know that going into court is a crapshoot, with somewhat random results, but the one thing that we can be certain of? Having money enough to have a team of attorneys permanently on staff (like Sony) is definitely going to help tug the randomness in your direction.

How could any court not view this as false advertising? My guess is that they have fresh Vaios and PS3s (i.e. hookers and blow) to spare.

Re:Is this any surprise?

[jimicus]

It's not quite as simple as that for a number of reasons:

1. A number of countries have a system for dealing with claims with a low monetary value (which this would almost certainly fall under) and generally speaking this system is set up to make it practical for you or I to sue a huge company by limiting the amount of costs (and, for that matter, messing around) either party can incur.

2. "How could any court not view this as false advertising?" : Good question. IANAL, but I can think of three things: I seriously doubt many people genuinely used their PS3 for Linux - and Sony could easily dig up numbers to support that, the fact that the feature was removed in the update was well known and in the release notes and the update may well have shipped with a "regardless of what this does to your console, you can't sue us" disclaimer.

I would add that IMV the only thing worse than Sony doing this is that I haven't yet heard of a single legal case where the judge(s) involved seem to be taking it particularly seriously. I really don't like the idea of living in a world where a manufacturer can release a product with features X, Y and Z only to remove Z - even from items already sold - at a later date. Could be particularly interesting here in the UK where no matter what the manufacturer does, it's the retailer who's on the legal hook if they sell you something which doesn't perform as advertised.

Re:Is this any surprise?

[nacturation]

It's completely ridiculous, which shouldn't surprise anyone.

The ridiculous and surprising part is his legal defense:

"He explains that he believed a warning about the update, downloaded on April 1st, was just an April Fool's joke."

If I were the judge, I would have adjourned the case until April 1st and then handed down the victory to Sony then.

Re:Is this any surprise?

[chaboud]

We have subscription accounting (Sarbanes-Oxley) for products for which the manufacturer is obligated to support the advertised feature-set and ongoing work.

It hardly seems like a stretch to hold manufacturers to their advertised add-ins (especially "free" ones that have their cost built into the cost of the device) for the reasonable life-time of the product.

Sony totally boned the PS3 lifetime, though. The degree of cluelessness with the little things and the amount of damage that they have done to such a technically impressive platform is just mind-boggling.

Re:Is this any surprise?

[jimicus]

It's a bit of a weird situation for the law though, isn't it?

That sums it up beautifully.

While consumer law in many countries explicitly bars terms which say "you can't sue us", I seriously doubt it accounts for products which may be updated over the course of their lifetime in this fashion.

  For one thing, much of it was probably written long before user-updateable firmware became common, in which case the idea that it might even be physically possible to disable a feature post-release would be totally alien.

Re:Is this any surprise?

[Anonymous Coward]

For one thing, much of it was probably written long before user-updateable firmware became common, in which case the idea that it might even be physically possible to disable a feature post-release would be totally alien.

That is the problem. The law doesn't currently consider the idea of upgradeable firmware. That doesn't change the fact that disabling a feature post-release is a dirty business tactic. There were a lot of people who did use the PS3 for Linux and gaming. It is not possible to continue to use the Playstation Network if you don't continually install the firmware upgrades. While they're saying that nobody is forcing consumers to upgrade to firmwares that drop the other OS support they're essentially locking people out of the online section if they don't. It's dirty and it should be illegal.

All we have here is a bunch of tech companies (Sony, Apple, etc) who are treating the device like they own it. They are operating it like the user is leasing it from them, which is not true. They're really exploiting the fact that the law hasn't kept up with the technology to be able to fuck everyone around.

The law will evolve, but it will take more than one guy in the small claims court. It'll take an army of highly paid lawyers. The lawyers will win in the short term but (hopefully) in the long term the law will start to catch up with the technology.

Re:Is this any surprise?

[Maximus633]

While I tend to not feed the trolls this comment seems to be more of an attack. You must not understand what Linux is about. It is not about anti-copyright thieves or pirates. I think you will find if you take the time to look beyond what someone is spoon feeding to you that you might see it is actually the opposite. Most Linux users (be it system admins or the Linux home user) respects copyrights. We relay on those same evil copyright laws to enforce companies and individuals to follow the agreement for the use of our code or project. While the "releasing" of the code is different in each case (GPL BSD etc) they all have the same request for copyright as most people. The Linux community has even taken cases to court in which code was "used" without their permission or in a way not intended in their agreement for the right to use the code.

With that being said how can you say that linux users are against copyright if we want it enforced on our own products. Yes there are people who use linux to "break" copyright and move around things. However, this happens in the Apple world as well as the Microsoft world. May I remind you that majority of the copyright cases filled by the RIAA are users using programs that were developed for a Windows Operating system.

There are just as many people out there using the other operating systems who don't give a crap about copyrights as there are those that use linux who don't care for copyrights.

Re:Is this any surprise?

[gamricstone]

I don't believe this is false advertising, as no one who purchased a console before the update was required to install the update. Sony is under no legal obligation to provide access to the PSN, and they are simply refusing to offer this service to consoles with outdated firmware. As for removing the option to install other OS, that is also Sony's choice for future firmware iterations as well as future console sales.

That being said I think its a shitty move on their part, but far from illegal unless they continue to advertise the feature.

Re:Is this any surprise?

[TheRaven64]

I don't believe this is false advertising, as no one who purchased a console before the update was required to install the update

Unless they want to play new games, new BluRay movies, or continue to access PSN. If you don't install the update, you lose these features (which the console was advertised as having), if you don't install it then you lose the ability to run Linux (which the console was advertised as having). Whichever choice you make, you lose some of the functionality that the console was originally advertised as having.

I hope that Microsoft and Nintendo will remember this for the next round of the console wars, and remind people that Sony doesn't sell you a console, it lends you one and reserves the right to disable arbitrary features in the future.

Re:Is this any surprise?

[Ash Vince]

Sony totally boned the PS3 lifetime, though.

But not in any sort of way they actually care about. The lifetime of a PS3 they care about is the amount of time you can use it to carry on consuming their content (ie, licensed PS3 Games and BlueRay Movies). Other crap you can do with the device that does not make them any money they don't care about.

Even on the PC Linux is a niche market amongst home users that carries very little commercial weight as a result. I bet on the PS3 it was even more so so when the Other OS feature became a security hole in the platform it was simply not worth fixing when it could be removed far more cheaply and the only people it would annoy a few geeks.

Remember also that they did not force you to apply the update so if you wanted to you could have carried on playing all the single player games you already had and never upgrade. The only legitimate customers it affected were people who used the Other OS feature and also played games online.

The simply fact is they removed a feature that most of they customer base did not care less about having. They did this to make sure they carried on getting revenue from games producers. Sony's big selling point to game producers is the enhanced security over the Xbox360 which has more users. If they lost this selling point more and more developers would just abandon the platform and save the money they spend supporting it.

I know the PS3 has better capabilities but that is a selling point to end users, not game development companies since they usually have to support both platforms anyway and have to deal with lowest common denominator hardware. They can improve the rendering a little on the PS3, but the bulk of the gameplay will be identical between PS3 and Xbox360.

The truth is that I am amazed the PS3 is still getting any game development anyway. It has long since been overshadowed by the XBox360 and Wii in terms of userbase. It may have been by far the best console on paper, but it was just priced too high to manufacture. This made the console expensive to buy and even then it was being sold at a loss and still is apparrently, long after the Xbox360 is being sold at a profit per unit.

http://nexus404.com/Blog/2010/02/05/sony-still-posts-a-loss-for-every-ps3-sold-ps3-costs-sony-18-more-than-it-costs-you/

This leaves Sony's only hope being that it will take off as 3.5 generation console and creep back into the market as the Xbox360 and Wii start to look dated in terms of technical specs (ie - no BlueRay). This will only work though if Sony can cling onto game developers producing content for it. They can only do this by screaming to the world that their console is the most pirate proof in a big old PR game with the managers of the game development companies. PR games are very rarely based on fact anyway so whether the Other OS feature actually made it more secure is largely irrelevant.

Re:Is this any surprise?

[chaboud]

I used Linux largely for Cell development when I worked at Sony, but also for occasional browse-on-the-TV stuff.

It's a memory-constrained box, though there is a bit of hackery available (and in use, on mine) to use graphics memory for a little large-page help. The HDD is a laptop drive, and everything works fairly well with a wireless keyboard/mouse. You can rip/archive Blu-Ray (which I've never done) and do most Linuxy things. Still, Eclipse, big GIMP work, and anything else that leans hard on memory is in tight quarters. Picture the Flash working for FedEx, carrying one package at a time. The trucks would win.

I haven't started the system because I have Linux elsewhere, am not currently writing code for the Cell, and was pretty much sticking to gaming online. Since going online would mean making a cripple-the-system choice, I've just skipped it altogether, opting instead to buy some games on Steam. I'd been looking forward to several games, but the Linux removal killed my interest in the system.

We now have a component Blu-Ray player.

It's a Samsung.

Re:Is this any surprise?

[byuu]

You should demand a full refund of all of your subscription fees for the online section.

And for all the games you buy that end up requiring a firmware >= the Other OS disabling version to play, since the game packaging doesn't mention minimum firmware required.

Re:Is this any surprise?

[pnewhook]

Sony totally boned the PS3 lifetime, though. The degree of cluelessness with the little things and the amount of damage that they have done to such a technically impressive platform is just mind-boggling.

I don't think anything Sony did will affect sales in the slightest. This is a non-issue as the vast majority of the users simply dont care that an obscure and little used piece of functionality was removed. It was simply not cost effective for Sony to keep supporting it.

This lawsuit was ridiculous in that the guy was bound to lose since Sony did nothing wrong legally.

Re:Is this any surprise?

[Dishevel]

They also release new games that need the update and will not play without it.

So Sony is making you choose between running other OS or playing new games and playing games you have already bought online.

Not exactly cut and dried. What Sony has done is wrong. I know why they did it. It may end up being the best move for them. It is still wrong and your statement that the update is not forced is wrong for a great many people.

The choice of do I want to use the system I paid for to do everything Sony promised (Other OS and old games on online) or do I want to do everything else Sony promised (Play new blue-Ray movies and new games and play new and old games online). Saying that Sony leaves us with a choice is bullshit and you know it. Give me your cash or I shoot you in the head.

Was there a reason you said that? Was it karma whoring or just stupidity? Maybe you work for Sony.

Re:Is this any surprise?

[unix1]

This is a non-issue as the vast majority of the users simply dont care that an obscure and little used piece of functionality was removed. It was simply not cost effective for Sony to keep supporting it.

This lawsuit was ridiculous in that the guy was bound to lose since Sony did nothing wrong legally.

So, if "vast majority" of Toyota owners no longer use cassette tape players, it would then be OK for Toyota to single-handedly rip them out when such cars are taken into scheduled maintenance? After all, it's a "non-issue" to most people, right?

The fact is - it was advertized and sold as a feature of PS3. Certain people bought it, in part, because it had that feature. It's unfair to remove it after sale. Just because you may not care, doesn't make it OK or legal to do. In fact, with that logic, they can remove other features like their Internet browser, or image gallery, or CD player, or disable USB ports just because they no longer see it as "cost effective" to keep it for you. How many of those features would they have to remove before you notice something is wrong?

Very sad.

[ahaubold]

Yet another case where money > consumer protection/right.

Another link

[Lliam33]

Forum post from the guy involved. Scroll up for some more info.

Judgement apparently not posted yet

[Namarrgon]

When it is, I'd expect it to appear here.

Re:Appeal posible

[julesh]

Is there? I've spent a frustration 30 minutes bouncing from link to link looking for some actual details without much luck.

Yeah, the details are rather scant. But the decision was apparently made by a magistrate, which means he filed either in a local court or in the federal magistrates court. Either of these can be appealed (*almost* automatically) to a higher court, if he chooses to do so.

Facepalm

[DrScotsman]

Okay I am really confused over all of these attempts to sue the manufacturers, maybe I'm missing something here. In the UK, if a product is not as described/fit for purpose among other things, the seller is liable (providing they're a business etc.). It's the same thing EU-wide (1999/44/EC), surely it's the same with Australia and North America?

Or am I wrong about the UK, and the manufacturer is also liable? Any British IANALs got some case or statute law that says that a buyer can sue a manufacturer for false advertising?

Re:Facepalm

[cc1984_]

I know you're trolling but let me explain why the UK does what it does.

The Sale of Goods act (1953) was brought into being to protect the consumer from shops palming off problems to the manufacturer. Your equipment is faulty? Send it back to the manufacturer. The book you bought has pages missing? Phone up the publisher to get it replaced. With this act the retailer is obliged to offer a replacement to the purchaser and it becomes the retailer's responsibility to get a replacement from the manufacturer. No flux capacitor required.

Re:Facepalm

[TheRaven64]

The same act provides the shop with grounds to take it to the supplier. Basically, it means that the supply chain works both ways. You take the problem to the shop, and they are required by law to address it. They then take it to their supplier, who is required by law to address it. The complaints go from the customer to the retailer to the wholesaler and then to the supplier.

Part of the logic behind this is that you have a lot more leverage against the person closest to you in the supply chain. Your decision to boycott Sony and tell all of your friends to do so makes little difference to them. Your decision to boycott a local shop and tell all of your friends to do so makes a bigger difference to them. The shop's decision to boycott Sony won't make much difference, but their choice to switch wholesalers would. The wholesaler's decision to stop providing Sony products would be a much bigger threat to Sony than a single customer.

Re:Facepalm

[Xest]

Indeed, and it makes the retailer less likely to do business with problem publishers/manufacturers, hence putting greater pressure on them than an individual by themselves could to rectify their poor business practices.

It's easy for a manufacturer to fob off multiple independent individuals, it's harder for them to fob off the retailers who are their gateway to getting their products to consumers in the first place.

Re:He should appeal

[jimicus]

There's a forum linked elsewhere - in essence, Sony's argument was "you can't sue us, the EULA says so" and the judge agreed.

Re:Why do people even trust Sony anymore?

[stealth_finger]

Ain't that the truth, and even before that they were shady.

The story so far

[Lord Bitman]

A man walks into a shop:
"Hello, good sir. I would like to purchase a computer."

"Here you are. That will be $600"

"A fair deal indeed. Thank you."

[ Several months later, our hero comes home to find his computer missing. In its place is a short note and a paddle-ball ]

"Dear customer. We have taken the liberty of replacing your computer with a paddle-ball, as we learned that people were attempting to use their computers for non-paddleball-related activities."

Re:The story so far

[Cruciform]

You walk into a dealership of recreational vehicles.
You see an amphibious car on display. The head of the amphibious car manufacturing division has stopped by the dealership, and is extolling the features of it to customers.
"Drives on land! Operates in water like a boat!"
So you buy one.
After you buy it, you might use both features, you might not. But isn't it awesome knowing if you want to you can just drive down to the lake and go for a spin?
But then there's a knock on the door. A representative of the company says they would like to enter your garage and make some modifications to your amphibious car. They're just going to remove all of the features that work in water. You don't HAVE to let them modify it, but if you don't then your car will not be allowed out of your garage.
You can still go out and start it up, but driving it on the road is will be expressly forbidden.

So now you're stuck with a choice. An amphibious car that doesn't drive in water, or one that doesn't drive at all.

Seems kind of dirty to me.
Especially after they explicitly advertised the PS3 as a computer.
http://kotaku.com/179245/why-the-ps3-is-a-computer-sony-dodges-euro-tax-men

Sony should now be required to pay back taxes on all that hardware.

Poor Choice of Damages

[DavidD_CA]

It says he sued to get back $800 (AU), which was the cost of renting a laptop for some unspecified period of time.

He should have sued for the retail price of the PS3.

To use a car analogy

[scdeimos]

Customer: I bought this Sony Car because it had headlights. I need headlights so I can drive my car at night.

Sony: We removed the headlights feature at your last service because headlights can be used to flash oncoming drivers. But removing headlights has made your Car lighter, so it can go faster and use less fuel. We hope you like the changes.

Customer: I can't use my Car any more because you took the headlights away, thus it's no longer roadworthy and it would be illegal for me to drive it. Give me back my headlights, and pay $800 for the rental car I've had to use in the meantime.

Sony: No.

Judge: No.

Rest of the world: Dumb-asses.

Re:Analogy

[jimicus]

Oh, very much in so. An EULA is a blatant attempt to turn a business-to-consumer transaction (which in many countries has all sorts of legal protections) into the legal equivalent of a business-to-business transaction (which in many countries has very few legal protections - if you're a business you're meant to have the good sense to exercise due diligence and hire a lawyer if necessary).

What the world really needs is a judgement in a first-world country in a court which makes binding decisions acknowledging this and telling the big company in no uncertain terms where to stick their EULA. Though very few individuals have the money to chase something all the way to such a court, and any director with half a brain will settle out of court as soon as it becomes apparent that something like this may happen.